THE SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL
The Right to a Trial within a Reasonable Time
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence. [Emphasis added.] AMENDMENT VI [1791]
The constitutional right of a criminal defendant to be tried within a reasonable time following accusation is guaranteed by the Sixth Amendment. The literal language states that in all prosecutions of a criminal nature, the accused has the right to a speedy trial. As a practical matter, a criminal trial may be delayed for a variety of reasons. The request of the defendant for additional time to formulate a defense, the need for the prosecution to prepare its case, and the resolution of pretrial motions constitute appropriate reasons why the start of a trial may be delayed. Prior to 1967, the speedy trial right clearly applied only in federal criminal trials, but following the Court's decision in Klopfer v. North Carolina, 386 U.S. 213 (1967), the right to a speedy trial became a constitutional requirement enforceable against the states.
Speedy Trial Statutes
Criminal defendants may also claim speedy trial rights based on federal law and state statutory and constitutional provisions. (See the Federal and Ohio statutes, infra, This Lesson.) Typically, state and federal speedy trial statutes attempt to provide a time table with which the prosecution must comply, subject to carefully delineated exceptions. Most statutes provide savings provisions to prevent the release of a defendant due to a mere nonconformity with the time requirements.
Since both society and the accused possess an interest in a fairly rapid resolution of criminal cases, the state function of administering justice arguably is best served by freeing the innocent and incarcerating wrongdoers as soon as possible. Since the government generally has the burden of proof concerning most trial issues, delay in proceeding to trial usually works in a defendant's favor as the memory of witnesses becomes less clear with the passage of time. Without the right to a swift resolution of a criminal case, a defendant would face an uncertain future with a criminal accusation remaining unresolved and would be forced to contend with difficulties in planning for the future, with employment, in meeting expenses of litigation, and with diminished availability of witnesses and testimony. Problems concerning availability of defense witnesses becomes especially acute where crispness and detail of testimony prove crucial. Further prejudice to the defendant's reputation and community standing occurs while criminal charges are pending, a factor which leads to much personal anxiety and stress. Of special concern is the prejudice suffered by a defendant unable to make bail who must remain incarcerated pending trial. In such a case, a speedy resolution becomes imperative.
When Time Begins to Run
The Sixth Amendment right to a speedy trial matures upon custodial arrest for the specific charge, indictment, or the filing of an information. Only by taking one of the above steps has the prosecution indicated that a criminal case has been selected for which a speedy resolution becomes meaningful. The right exists where a person has been arrested and released, but has neither been indicted nor has an information been filed against him. The right to a speedy trial applies to individuals incarcerated in a foreign jurisdiction [other state] so that the jurisdiction lacking custody must attempt to procure the presence of defendant or risk a violation of the right to speedy trial. The non-custodial state may not use the defense that unavailability is the defendant's problem where the convict is the "guest" of a foreign jurisdiction. See Smith v. Hooey, 393 U.S. 374 (1968).
The Four Factors Test
In order to determine whether the constitutional right to a speedy trial has been violated courts should look to four factors as described by the Court in Barker v. Wingo, 407 U.S. 514 (1972). According to the Barker Court, attention should be directed to consideration of the length of the delay, the reason for the delay, the defendant's assertion or non-assertion of the right, and prejudice to the defendant. The length of the delay may prove determinative that the right has been violated. However, case law seems to indicate that the passage of time alone will rarely prove sufficient to constitute a infraction, but time, in concert with other factors may tip the scales in the direction of a violation. In Doggett v. United States, U.S. , (1992), Next Lesson, the defendant had been indicted in 1980 but not arrested until late 1988. Doggett's location could have been easily discerned except for governmental negligence. The Court overturned his conviction for drug offenses based on the length of the delay and the presence of presumed, but unproven, prejudice. Doggett proved unable to present specific instances of prejudice to his case. The Court accepted the presence of prejudice by citing the extremely long wait between indictment and arrest.
The second factor mentioned in Barker involved the reason for the delay. Acceptable reasons include time used for psychiatric examination, defense requests for continuances, and absence or illness of necessary prosecution witnesses. Crowded court dockets and postponements purposely used or created to hinder the defense have not proved to be acceptable as reasons for delay. Where a defendant has requested a continuance, the right to a speedy trial has been effectively waived to the extent of the request.
The Barker court noted that the assertion or failure to assert the right to a speedy trial constitutes the third factor courts must consider. While some continuances may enhance the prosecution's case, normally the defense receives benefits of a delay because the burden of proof rests with the government. Where the defendant remains silent and does not assert the right, a waiver will not conclusively be presumed, but the silence of defendant in failing to assert the constitutional right will not materially enhance a speedy trial contention.
The final factor which the Barker Court cited as important to a determination of a speedy trial violation was prejudice to the defendant. Prejudice should be viewed in the light of the interests of defendants which the speedy trial right was designed to protect. The Barker Court identified three such interests: the prevention of oppressive pretrial incarceration, the diminution of anxiety and concern of the accused, and a limitation of the possibility that the defense case might be impaired. Of the three, the most crucial is the third, because the inability of a defendant adequately to prepare his case tilts the fairness of the criminal justice system. If witnesses die or disappear during a delay, the prejudice becomes apparent. Prejudice may originate where defense witnesses are unable to recall accurately events of the distant past.
Prejudice may include extensive pretrial incarceration, loss of job, stress to the defendant, loss of witness testimony due to death or fading memory. Where a strong indication of prejudice appears and co-exists in the presence of a sufficient level of the three other factors, a court may conclude that the government has violated a defendant's right Sixth Amendment right to a speedy trial.
Remedy for Violation
Where the criminal defendant has prevailed on a Sixth Amendment speedy trial claim, courts have struggled to formulate an appropriate remedy. Some jurisdictions devised a method whereby a sentence would be reduced by the length of the duration of the speedy trial violation. However, the Court in Strunk v. United States, infra, Next Lesson, 412 U.S. 434 (1973) determined that the remedy must include a prejudicial dismissal of the case. Where prejudice to the defendant such as the death of a witness has occurred, a reduction in length of sentence would do nothing to cure that prejudice and ensure fairness in a trial long ago concluded. Therefore, outright prejudicial dismissal remains the sole remedy for a violation of the Sixth Amendment right to a speedy trial.
Federal Speedy Trial Act18 USC § 3161
§ 3161. Time limits and exclusions
(a) In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or other short-term trial calendar at a within the judicial district, so as to assure a speedy trial.
(b) Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days.
(c) (1) In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate on a complaint, the trial shall commence within seventy days from the date of such consent.
(2) Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.
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(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to-
(A) delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant;
(B) delay resulting from any proceeding, including any examination of the defendant, pursuant to section 2902 of title 28 United States Code;
(C) delay resulting from deferral of prosecution pursuant to section 2902 of title 28, United States Code;
(D) delay resulting from trial with respect to other charges against the defendant;
(E) delay resulting from any interlocutory appeal;
(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion;
(G) delay resulting from any proceeding relating to the transfer of a case or the removal of any defendant from another district under the Federal Rules of Criminal Procedure;
(H) delay resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization, except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant's arrival at the destination shall be presumed to be unreasonable;
(I) delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government; and
(J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.
(2) Any period of delay during which prosecution is deferred by the attorney for the Government pursuant to written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct.
(3) (A) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness.
(B) For purposes of subparagraph (A) of this paragraph, a defendant or an essential witness shall be considered absent when his whereabouts are unknown and, in addition, he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. For purposes of such subparagraph, a defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.
(4) Any period of delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial.
(5) Any period of delay resulting from the treatment of the defendant pursuant to section 2902 of title 28, United States Code.
(6) If the information or indictment is dismissed upon motion of the attorney for the Government and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge.
(7) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.
(8) (A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings hat the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
The following state statute is presented a representative of state speedy trial statutes. This state statute reprinted below is from Vol. 29 of the Ohio Revised Code.
[TIME FOR TRIAL]
2945.71 Time within which hearing or trial must be held.
(A) A person against whom a charge is pending in a court not of record, or against whom a charge or minor misdemeanor is pending in a court of record,
shall be brought to trial within thirty days after his arrest or the service of summons.
(B) A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:
(1) Within forty-five days after his arrest of service of summons, if the offense charged is a misdemeanor of the third of fourth degree, or other misdemeanor for which the maximum penalty is imprisonment for not more than sixty days;
(2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days.
(C) A person against whom a charge of felony is pending:
(1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge;
(2) Shall be brought to trial within two hundred seventy days after his arrest.
(D) A person against whom one or more charges of minor misdemeanor and one or more charges of misdemeanor other than minor misdemeanor, all of which arose out of the same act or transaction, are pending, or against whom charges of misdemeanors of different degrees, other than minor misdemeanors, all of which arose out of the same act or transaction, are pending shall be brought to trial within the time period required for the highest degree of misdemeanor charged, as determined under division (B) of this section.
(E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. This division does not apply for purposes of computing time under division (C)(1) of this section.
(F) * * *
2945.72 Extension of time for hearing or trial.
The time within which an accused must be brought to trial, or in the case of felony, to preliminary hearing and trial, may be extended only by the following:
(A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability;
(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial;
(C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;
(D) Any period of delay occasioned by the neglect or improper act of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
(F) Any period of delay necessitated by a removal or change of venue pursuant to law;
(G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order;
(H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than that upon the accused's own motion;
(I) Any period during which an appeal filed pursuant to section 2945.67 of the Revised Code is pending.
2945.73 Discharge for delay in trial.
(A) A charge of felony shall be dismissed if the accused is not accorded a preliminary hearing within the time required by section 2945.71 and 2945.72 of the Revised Code.
(B) Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code.
(C) Regardless of whether a longer time limit may be provided by sections 2945.71 and 2945.72 of the Revised Code, a person charged with misdemeanor shall be discharged if he is held in jail in lieu of bond awaiting trial on the pending charge;
(1) For a total period equal to the maximum term of imprisonment which may be imposed for the most serious misdemeanor charged;
(2) For a total period equal to the term of imprisonment allowed in lieu of payment of the maximum fine which may be imposed for the most serious misdemeanor charged, when the offense or offenses charged constitute minor misdemeanors.
(D) When a charge of felony is dismissed pursuant to division (A) of this section, such dismissal has the same effect as a nolle prosequi. When an accused is discharged pursuant to division (B) or (C) of this section, such discharge is a bar to any further criminal proceedings against him based on the same conduct.
Four Factors Used to Determine Speedy Trial Violations
BARKER v. WINGO, Supreme Court of the United States (1972), 407 U.S. 514, 92 S.Ct. 2182
FACTS:
On September 15, 1958, Silas Manning and Willie Barker, the petitioner, were indicted for the murder of an elderly couple. The trial court appointed counsel on September 17 and set a tentative trial date of October 21, 1958. Since the Commonwealth of Kentucky had a stronger case against Manning and the prosecutor felt that Barker could only be convicted if Manning testified against Barker, the trial court granted the first of what eventually became sixteen continuances. Barker's trial finally began on October 9, 1963, some five years following his murder indictment. Barker spent ten months in custody prior to being released on pretrial bail.
The length of the delay for Barker's trial was attributable to the difficulty of obtaining a valid conviction of Manning and later, to problems involving the prosecutor and the health of his witnesses. Following Manning's conviction, the prosecutor requested the twelfth continuance of Barker's case, to which Barker objected. The court granted and twelfth and two subsequent continuances in June and September 1962. Barker did not object to the latter two continuances. In February 1963, Barker's trial was set for March 19. On the March trial date, the prosecutor requested another continuance to which Barker objected and requested a dismissal of the case. The judge set the case for a June, 1963 trial. The June trial date came and went due to the continued illness of the former sheriff. The trial court announced that if the case were not tried in October, 1963, that the case would be dismissed.
At the October trial, Manning testified against Barker with the result that Barker was convicted and sentenced to life in prison. Barker pursued his legal remedies and the Supreme Court of the United States granted certiorari to consider whether the Sixth Amendment right to a speedy trial had been violated.
PROCEDURAL QUESTION:
Where the prosecutor delays a trial for greater than five years following indictment for legitimate reasons, does the length of te delay by itself violate the Sixth Amendment right to a speedy trial?
HELD: No.
RATIONALE:
Mr. Justice POWELL delivered the opinion of the Court.
Although a speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution, this Court has dealt with that right on infrequent occasions. [Citations omitted.]
* * *II
The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.
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A second difference between the right to speedy trial and the accused's other constitutional rights is that deprivation of the right may work to the accused's advantage. Delay is not an uncommon defense tactic. . . .
Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.
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The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.
III
Perhaps because the speedy trial right is so slippery, two rigid approaches are urged upon us as ways of eliminating some of the uncertainty which courts experience in protecting the right. The first suggestion is that we hold that the Constitution requires a criminal defendant to be offered a trial within a specified time period.
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We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. . . .
The second suggested alternative would restrict consideration of the right to those cases in which the accused has demanded a speedy trial.
Under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right. . . . .
Such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court's pronouncements on waiver of constitutional rights. The Court has defined waiver as "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), we held:
"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not waiver." Id., at 516, 82 S.Ct., at 890.
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We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.
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We, therefore, reject both of the inflexible approaches - the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which he have deemed fundamental. The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.
IV
A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.
Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or over-crowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
We have already discussed the third factor, the defendant's responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which s not always readily unidentifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.
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We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; the courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.
V
The difficulty of the task of balancing these factors is illustrated by this case, which we consider to be close. It is clear that the length of delay between arrest and trial - well over five years - was extraordinary. Only seven months of that period can be attributed to a strong excuse, the illness of the ex-sheriff who was in charge of the investigation. . . .
Two counterbalancing factors, however, outweigh these deficiencies. The first is that prejudice was minimal. Of course, Barker was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker's witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory - one on the part of a prosecution witness - which were in no way significant to the outcome.
More important than the absence of serious prejudice, is the fact that Barker did not want a speedy trial. Counsel was appointed for Barker immediately after his indictment and represented him throughout the period. No question is raised as to the competency of such counsel. Despite the fact that counsel had notice of the motion for continuances, the record shows no action whatever taken between October 21, 1958, and February 12, 1962, that could be construed as the assertion of the speedy trial right. On the latter date, in response to another motion for continuance, Barker moved to dismiss the indictment. The record does not show on what ground this motion was based, although it is clear that no alternative motion was made for an immediate trial. Instead the record strongly suggests that while he hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to be tried.
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That Barker was gambling on Manning's acquittal is also suggested by his failure; following the pro forma motion to dismiss filed in February 1962, to object to the Commonwealth's next two motions for continuances. Indeed, it was not until March 1963, after Manning's convictions were final, that Barker, having lost his gamble, began to object to further continuances. At what time, the Commonwealth's excuse was the illness of the ex-sheriff, which Barker has conceded justified the further delay.
We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has filed to object to continuances. There may be a situation in which the defendant was represented by incompetent counsel, was severely prejudiced, or even cases which the continuances were granted ex parte. But barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial. We hold, therefore, that Barker was not deprived of his due process to a speedy trial.
The judgment of the Court of Appeals is affirmed.
Notes
1. As Barker clearly illustrates, following an arrest, indictment, or other official accusation, an analysis of four factors must be undertaken to determine whether a violation of the right to a speedy trial transpired. The length of the delay, the reason for the delay, the defendant's assertion or non-assertion of the right, and prejudice to the defendant constitute factors which assist a court in making a decision. While no single factor is usually determinative, the prejudice to the defendant probably weighs the heaviest.
2. The federal constitutional right to a speedy trial was not incorporated into the Due Process Clause of the Fourteenth Amendment until Klopfer v. North Carolina, 386 U.S. 213 (1967). Prior to Klopfer, a state criminal defendant could not successfully argue that the Sixth Amendment right to a speedy trial had been violated since that amendment applied only to federal criminal prosecutions.
3. Where a defendant has been indicted and the indictment dismissed without prejudice, any delay between the initial indictment and a subsequent indictment does not trigger any speedy trial argument. See United States v. MacDonald, 456 U.S. 1 (1982). Any complaint concerning the delay between the two indictments would rest on Fifth or Fourteenth Amendment Due Process grounds.
4. Following MacDonald, above, the Court in United States v. Loud Hawk, 474 U.S. 302 (1986), held that the length of time spent by the prosecution in appealing the dismissal of an initial indictment may not be counted by defendants in pursuing an alleged violation of the right to a speedy trial. According to the Court, the defendants were "not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause."